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Mr. Hattersley : Fortunately, there will be a free vote and, putting it at its lowest, I am no more bound by the rules of collective responsibility than is my hon. Friend. She will know how loose those ties are.
Sir Bernard Braine (Castle Point) : Will the right hon. Gentleman give way?
Mr. Ivor Stanbrook (Orpington) rose --
Mr. Hattersley : I have already been speaking for rather longer than the Home Secretary and I want to ask the right hon. Gentleman a second question, which I hope he will answer a little more precisely than he did the first.
Sir Bernard Braine : Will the right hon. Gentleman give way?
Sir Bernard Braine : Let me say straight away that I respect the right hon. Gentleman's reservations. That is the approach that I would expect of him. But he should bear it in mind that the Bill is primarily concerned with something that he has not mentioned--the acquisition of British citizenship by people who may have committed the most atrocious crimes. Does the right hon. Gentleman have doubts about the retention of British citizenship by
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such people, bearing in mind the fact that both the Canadian and the Australian Parliaments have already legislated on the matter?Mr. Hattersley : That intervention shows the folly of giving way-- even to the Father of the House--as I shall shortly deal with the aquisition of British citizenship.
Mr. Stanbrook : Will the right hon. Gentleman give way?
Mr. Hattersley : No, I shall proceed because so many hon. Members want to speak. I know that the hon. Gentleman is anxious to help me, but I am anxious to ask the Home Secretary a second question, which I ask in exactly the same spirit as the first. Is the Bill that he has placed before the House the Bill that he wants to pass into law? His speech contained a Delphic reference to the possibility of mutually agreed amendments. I realise perfectly well that, under the Parliament Acts, the right hon. Gentleman must send the Bill unamended to the Upper House. If a measure is to be submitted to the Lords twice, the same Bill must be submitted on each occasion. I think that it would not be an overstatement of the position to say that it would be intolerable if the Government already knew that they would amend or attempt to amend in the Upper House the Bill for which they are asking the House to vote tonight. Let me ask the right hon. Gentleman again whether he has it in mind to propose amendments in the other place if that is possible, because, if he has, he has a duty to tell us now.
Mr. Kenneth Baker : If the other place rejects the Bill on Second Reading, it will come back to this House and proceed to the statute book under the Parliament Acts. I am sure that, if that happens, it will operate satisfactorily as it is drafted. If the other place gives the Bill its Second Reading, it may wish to amend it, but let me make it clear that the Government will not be tabling amendments at that stage. It will be for the other place to decide, and I know that there are strong views among those on the Back Benches there. If the other place amends the Bill, this House will have to consider the amendments when the Bill comes back. We shall be able to accept or reject them or amend the Bill ourselves.
Mr. Hattersley : So there will be no Government amendments or Government-inspired amendments?
As I intend to vote for the Bill, I have to ask myself a further question. My first question was : is it right, under any circumstances, to proceed against those responsible for crimes that were committed half a century ago and, in consequence, prosecute the old and feeble? I have concluded that it is. The crimes concerned were so enormous that they defy our comprehension. I know that there are those who argue--they have argued since our previous debate--that more recent acts of genocide have been even more horrific than those committed immediately before or during the second world war, but I have no scale of values within which I can compare atrocities. Whether they were the worst of all time, or almost the worst, or so bad as to be beyond comprehension, there can be no statute of limitations on the crimes to which the
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Hetherington-Chalmers report refers. I am not attracted to the simple principle that things have gone on for too long.I should have preferred the Government to introduce general legislation along the lines of the 1949 Geneva convention, which made it clear that any war criminal from any war in any sector or any continent who might at any time come to Britain would be the subject of prosecution. That course would have had an advantage : we should have avoided the concept of preparing to prosecute known individuals. I have no doubt, however, that what the Government are doing today is legitimised by the Geneva Conventions Act 1957, and I can support that principle.
My second question concerns the propriety of legislating for the punishment of crimes committed before an Act was passed. The Bill that we are debating is not quite retrospective legislation. It comes near to it, but, in my view, does not qualify for that description. We are making retrospective changes in jurisdiction.
British citizens who had committed the crimes that we are discussing now would already be liable to prosecution. Had the alleged criminals remained in their countries of birth or not changed their nationality after the crime had been committed, they would certainly either have been prosecuted in their native countries or been liable to deportation to them.
I do not believe that the acquisition of British citizenship should be a means by which the prosecutions for such hideous crimes is avoided. I am aware of the alternative route of extradition or deportation. However, I cannot support that. I do not think that the system of criminal justice in the countries to which they might be deported, although improved over the past two or three years, is one to which I should want to see them go. In any case, I would not agree to deportation to a country that retained capital punishment for such crimes. That must mean that, if they are to be prosecuted at all, they must be prosecuted in this country.
Having convinced myself that neither the passage of time nor the extension of jurisdiction is sufficient argument to vote against the Bill, I considered the five main purposes of our judicial system : the deterrence of other potential criminals ; the reformation of those guilty of the crime ; the protection of society against a repetition of the offence ; retribution and the demonstration of revulsion which society feels towards the crime and those who committed it.
The Minister of State, Home Office (Mr. John Patten) : I am sure that it was simply an oversight by the right hon. Gentleman, but does he not agree that, on the face of the Bill, it is not just British citizens who are specified, but those who are either British citizens or resident ordinarily in Great Britain?
Mr. Hattersley : The Minister of State is quite right ; that was an oversight. I am grateful to him for pointing it out. The record of our proceedings will now be correct.
I had just offered to the House the five classic reasons why criminals are pursued, prosecuted and brought to justice. I do not believe for a moment that the first four considerations can be remotely applied in this case. The idea that passing the Bill will deter further atrocities is regrettably wholly unconvincing. In any event, were that the Government's intention, more general legislation
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would have been introduced. The Bill is intended to meet specific circumstances, as the Home Secretary said, by referring to men living here, as distinct from alleged Japanese war criminals who are not. It cannot, therefore, be regarded as a general deterrent. Nor can it possibly be argued that conviction and imprisonment might rehabilitate the offenders and, having reformed them, allow them to be sent back into the community as useful citizens. Nor are we locking them away to ensure that they do not commit such an offence a second time. That leaves the final purpose of the law : retribution and the demonstration of society's revulsion.Retribution is far too close to vengeance for my taste. In one of his short stories, Isaac Bashevis Singer reminded his readers about the real meaning of the Old Testament assertion
"Vengeance is mine saith the Lord".
Singer said that the meaning is perfectly clear. It does not mean that vengeance is generally sanctified ; it meant that vengeance should be left to the only authority entitled to dispense it. Singer also said that that was not only the last word on the subject, it was the first. I am, therefore, left with the final justification for the legislation, which is the demonstration of collective revulsion against the crime and the criminal and in this case that is a justification in itself.
However, I want finally to consider what have become related matters--the proposals for legislative changes that were once outlined in the original White Paper and then spatchcocked on to a Law Reform (Miscellaneous Provisions) (Scotland) Bill which was in turn emasculated in the House of Lords.
Mr. Gorst : Will the right hon. Gentleman reconsider his dilemma with regard to the people who were named by Scottish Television? As I understand it, the worst cases do not necessarily involve those who had been named. Therefore, much of the right hon. Gentleman's argument could be based on a misconception. I know that my right hon. Friend the Home Secretary cannot confirm or deny this, but the right hon. Gentleman's presumption is not universally accepted as correct.
Mr. Hattersley : I think that there is a problem, and I put it no higher than that. If we are planning to extend jurisdiction to men and women who have lived here for some time and who have been named publicly-- and heaven knows I am not a lawyer and I do not understand these matters--I have no doubt what a lawyer representing those people would say if a case were to come to court. On the other hand, if these cases do not come to court, will any other cases come to court? As well as not being a lawyer, I am not a gambling man. Were I a gambling man, I should be inclined to put my money on the presumption that once this Bill has been passed into law we shall hear very little more of it.
Finally, I want to refer to the procedures that will be necessary if convictions are to be obtained. When this subject was debated a year ago, the House generally seemed to be of the view that it was very important that the normal laws of evidence and the normal principles of the judicial system should prevail. My understanding is that the changes that were once proposed for the purpose of obtaining convictions were lost with the Scottish legislation in the House of Lords. I hope that the Home Secretary does not listen to me only on those occasions on which he refers specifically to his attentive nature.
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I have another question, which no doubt the Minister of State will answer in his winding-up speech. Can we be assured that neither through this legislation nor through related legislation are the Government contemplating special rules of evidence with a view to obtaining convictions? When the Home Secretary says that television links would be for the convenience of the defendant, that does very little to give me confidence in these matters. The intention of television links was to prevent witnesses from giving evidence which, because of intimidation, was inaccurate. In this case, the object of television links was to obtain convictions. I hope that we shall be told specifically and explicitly that the normal rules of evidence applying to courts in England or in Scotland will, for better or for worse, apply under this legislation. If conviction cannot be obtained under those rules, so be it.My final word--and I fear that it is a word of reservation--concerns the technicalities of time. In the House of Lords, Lord Hutchinson said that, putting aside the principle of time, the fact of time would make prosecution impossible as so much would depend on identification evidence. He asked who could expect identifications to be accurate after 50 years. Some chilling words were quoted in the House of Lords in support of that contention. They were described as chilling, and chilling they certainly are. The Hetherington-Chalmers report says :
"Because of the sickening efficiency of the mass killings, we found few Jewish eye-witnesses of the actual crimes. Those who had witnessed the atrocities were usually themselves killed. Many, however, were able to help with circumstantial and hearsay evidence, and some were able to identify suspects from photographs." I do not know whether that would be even remotely acceptable in a court of law. However, we do not want to see any adjustments made to the law in order to compensate for such a thing. I understand that the original intention of the Government was to make those adjustments. They were prevented from doing so only by the collapse of the Scottish legislation in another place.
Having said all that, I repeat what I have said five times already--I shall support the Bill this evening. But I shall do so in exactly the terms that I have described--as a declaration of our intention and of our principles. I shall not support the Bill in the hope that it will result in prosecutions, or because of belief in prosecutions. Rational assessment of what it provides suggests that neither of those things applies.
4.33 pm
Mr. Edward Heath (Old Bexley and Sidcup) : In his opening remarks, my right hon. Friend the Home Secretary said that he recognised that this matter divides the House deeply, as it divided another place deeply, and that the opposing views were held with great depth and the utmost passion. In saying so, of course, he was absolutely right. It is obvious from the voting lists that the matter has also divided the Cabinet. We now have a Prime Minister who voted against this proposal right at the beginning of the procedures. The Home Secretary said that it would be possible to see how views had changed in the intervening period. Everything that I have heard and read and thought since we last debated the matter here has convinced me even more that the reintroduction of this legislation is wrong. I deeply regret that the Government have reintroduced it in view of the divisions that I have
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described. [Laughter.] I do not know why it is a laughing matter. The hon. Member for Walsall, North (Mr. Winnick) laughs the whole time. This is a serious business.Whatever decision is taken, we are within a few months of a general election. I do not believe that it is in the interests of the country--it is certainly not in the interests of our party--to have this matter brought forward at this stage when our country is confronted by so many other difficulties. It is said that it must be done because it was in the Queen's Speech. I am afraid that in my political life many matters were in the Queen's Speech but they were not proceeded with, for a variety of reasons, some good and some bad. I cannot accept that as a reason for reintroducing this legislation. The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) emphasised that, in the intervening period, his doubts about this legislation had increased. I appreciate that, and I understand what he said about how that has occurred. I agree with him. Therefore, it is even more difficult to understand why he will vote for the Bill tonight than it was last time. I found it puzzling, but he knows best--he is his own judge. I understand that the right hon. Gentleman will vote in favour of the Bill because we must show that we have not forgotten the holocaust. That is what his speech amounted to. I must reassure him on that point. We shall never forget the holocaust. The world will never be allowed to forget the holocaust, and quite rightly. The state of Israel will never allow the world to forget the holocaust, and all its supporters will maintain that position. It is a very weak argument to say that all his absolutely rational doubts are overcome by the fact that he wants the holocaust to be remembered.
I refer now to the contents of the Bill and to the other various reasons for it that have been put forward. My right hon. Friend the Secretary of State said that the crimes, when committed, were against international law. Why has not action been taken under international law? No explanation for that is given. Of course there is now no means of undertaking it under international law. If one gets to the practicalities, these events happened in wartime and when countries had been overrun by other countries, by armies that had been given instructions.
How many people in this House know the contents of international law today? How many of our troops in the Gulf knew whether the orders that they were being given were always in accordance with international law? They accepted that they were--we all did--but did they have any knowledge--
Mr. Tony Banks : Will the right hon. Gentleman give way?
Mr. Heath : I should like to finish the sentence and then I shall give way to the hon. Gentleman.
In the forces we accept that we are given orders, and we carry them out. To say that, because there was international law at the time, it meant that people recognised what the law was and that they were guilty is not a justification for what my right hon. Friend the Home Secretary has said.
Mr. Banks : One does not need a doctorate in international law to know that it is absolutely wrong to massacre people in cold blood in a concentration camp.
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One does not need the niceties of the law to know that that is absolutely wrong. I am surprised that the right hon. Gentleman does not realise that.Mr. Heath : That is one of the points about international law. I return to my point. Why was not action taken under international law 45 years ago? There is no answer to that--none at all. A former Home Secretary, the right hon. Member for Morley and Leeds, South (Mr. Rees), who has been a party to the proceedings, nods his head in agreement with me.
Mr. John Patten rose --
Mr. Merlyn Rees (Morley and Leeds, South) rose
Mr. Jacques Arnold (Gravesham) rose --
Mr. Michael Latham (Rutland and Melton) rose --
Mr. Heath : I am asked to give way to four people at once. Mr. John Patten rose --
Mr. Speaker : Order. Is the right hon. Gentleman giving way to the Minister?
Mr. Patten : I am extremely grateful to my right hon. Friend for giving way. I can answer his question directly. In the period 1939-45, or in the years immediately after the war, there was no suggestion that any alleged war criminals were resident in this country.
Mr. Heath : Many of those brought to this country were believed to have been brought by British organisations to give us the information that we required. That was part of the understanding at the time. Will that be a justifiable plea if the Bill is enacted? We do not know.
Mr. Alex Carlile (Montgomery) : Does the right hon. Gentleman accept that those of us who are the children and relatives of the victims, who were not born at the end of the last war, wish to know why action was not taken under international law against those people? Does he also accept that, although a distinguished but minute minority of lawyers expressed strong views against the Bill in another place, the great majority of lawyers, including younger lawyers, support the Bill and believe that its proposals are entirely practicable and just?
Mr. Heath : The hon. and learned Gentleman's last point is debatable. I have not seen any opinion poll on it or found out the consensus among younger lawyers. It may be characteristic that those people who took no part in the war and knew nothing at first hand about the terrible things that happened now say, 45 years later, that we should take action. The weight of opinion in the House of Lords and among the Law Lords is undeniably against the Bill. No one can argue that, least of all the hon. and learned Gentleman.
No action was taken after those crimes were discovered because the Prime Minister and the Leader of the Opposition of the day felt that we had come to the end of the process, and that was acceptable by Parliament.
Dame Elaine Kellett-Bowman (Lancaster) : Will my right hon. Friend give way?
Mr. Heath : No, I am sorry ; I shall not give way.
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It is suggested that we should overthrow the decision that was made with the support of both Houses of Parliament and embark on such a process 45 years later.Miss Emma Nicholson (Torridge and Devon, West) : Does my right hon. Friend agree that at the heart of the Bill lies the collective guilt of Christian communities throughout the world for the enormity of crimes that have been committed against the Jews over 1,500 or 2,000 years and that culminated in the concentration camps? Therefore, is there not a genuine reason for the Bill coming before the House now?
Mr. Heath : No one questions the enormity of the crimes that were committed against the Jews. I did not intend to repeat that argument. I said in an earlier speech that the other regiment in our brigade was entrusted with going to the concentration camps and, obviously, we heard about everything that was seen there. When my regiment went into Antwerp it passed a concentration camp, so I know all about the enormity of the crimes. Throughout history there have been enormous crimes, but they should be dealt with at the time. We should be far more in tune with the times if we were to deal with war crimes that took place in the Gulf rather than trying to deal with so-called war crimes that took place 45 years ago. However, I accept the view of my hon. Friend the Member for Torridge and Devon, West (Miss Nicholson) that the enormity of the crime demands action. No one disputes that.
Dame Elaine Kellett-Bowman : Does my right hon. Friend accept that, when the wartime Prime Minister sought to draw a line under those events, he had not the slightest idea--nor had anyone else--that the criminals would receive the protection of British citizenship? As British citizens would have been liable, why should they get off scot-free by having become British citizens later?
Mr. Heath : I tried to serve Mr. Churchill as best I could during his period in government when I was a Member of the House, and I never found him ignorant of anything. Like other members of the Government, he was informed about why many of those people were being brought to this country and was told that they would settle here. That is a well-known fact, so I do not accept my hon. Friend's argument in this case, as in so many other cases.
I do not believe that we are embarking on a course that will be practically satisfying to the law or to the great majority of British citizens. As has been said, there will be show trials, and we know what the press can do with them. We have seen what they did with incidents in the Gulf war, when those who appeared on television were said to have been mutilated by their captors, but when they returned home they said that they had been injured in an air crash and had been treated well. The people of this country will be sickened, as they were in 1948, by the television and radio coverage, day and night, and by the coverage in the gutter press. It is not in the interests of Parliament to allow that.
The Attorney-General (Sir Patrick Mayhew) : Will my right hon. Friend enlighten the House and explain what he means by a show trial in the case of an offence for which prosecution must have the assent of the Attorney-General?
Mr. Heath : Does anyone imagine that the press and television companies will not make the most of any trial that takes place? My right hon. and learned Friend may
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say that television cameras will not be allowed in the court room, but the television companies will still make the most of the event through dramatic descriptions every night. I am surprised that my right hon. and learned Friend frowns at that. Has he not seen the extent of recent television and radio coverage of the Birmingham Six trial? To suggest that the press will not make the most of any such trial is nonsense. It will be a repeat of the situation that arose in 1948 ; people will be sickened by it and, if it continues and enough people can be found to be charged, public opinion will rise in an outcry against it.I return to the fundamental question of retroactive legislation. The right hon. Member for Sparkbrook tried to find a way around it by saying that it was retroactive jurisprudence--
Mr. Hattersley : Jurisdiction.
Mr. Heath : I cannot accept that calling it retroactive jurisprudence is a valid distinction. We are changing the law, because 45 years ago the law did not apply. One can analyse the reasons and say that the law should have applied.
Mr. Hattersley : The law did apply.
Mr. Heath : If so, why did we not apply it? It was not applicable in this country, and it is this country's law with which we are now dealing. I strongly object to retroactive legislation--[ Hon. Members :-- "Why?"] I bitterly object because the Conservative party, in particular, has always objected to backdating legislation.
Mr. Ivan Lawrence (Burton) : We oppose retrospective legislation because it makes criminal today something that was not criminal when it was perpetrated Nobody in his wildest extravagance could imagine a time when to mass-murder people, as war criminals did, was not against the law of the world.
Mr. Heath : I know of my hon. and learned Friend's passion and motivation on the issue, but it is splendid of him to say that it was the law of the world.
Dame Elaine Kellett-Bowman : It was the law of the British citizen.
Mr. Heath : Will my hon. Friend remain quiet, just for a few seconds?
If my hon. and learned Friend the Member for Burton (Mr. Lawrence) went before the court as a barrister tomorrow saying that he was acting on the law of the world, what response would he expect to receive from the judge? We are dealing with the law of this country. My hon. and learned Friend says that, regardless of all our traditions and everything for which the world respects us and in which we take pride, we never act retrospectively unless it is the law of the world. I cannot accept that for a moment, even given the appalling circumstances in which some of those people may have acted in the past.
Therefore, I object strongly to the Bill. During my time in Parliament, Opposition Members have always gone to the utmost lengths to protect the right of the individual. The Labour party has been renowned for that and has fought many battles, both public and individual, and is still doing so.Therefore, I find it difficult to understand why it is prepared to support a Bill such as this when we
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have not acted for 45 years--[H on. Members :-- "Not everyone."] I agree, not everybody. Now Labour Members say, "We must do this regardless of the consequences."Mr. Rooker : I am grateful to the right hon. Gentleman for giving way because there is an answer to that point. We fight because we want equal treatment for every British citizen and people living under British jurisdiction. Cutting aside all the waffle, the Bill amounts to a technical adjustment to nationality law so that every British citizen and everyone living under British jurisdiction suffers or gains from equal treatment under the British law. It cannot be denied that that is all it amounts to.
Mr. Heath : If that is effective from the time the Bill is passed, all well and good. The hon. Gentleman will then say that everyone, whether they came to be British citizens or were originally British citizens, will be treated equally. But to make the legislation retroactive, turning it back 45 years to deal with events about which the people involved did not know, other British citizens did not know and on which Parliament, if it did know took no action, is entirely unjustified.
Sir Bernard Braine : I am grateful to my right hon. Friend, whose argument I am following with intense interest. He implies that we are embarking on legislation that is unique in this country. He objects to that and has a right to do so. However, is he not aware that the Parliaments of two highly respected democracies--Canada and Australia--have already enacted such legislation and similar action has been taken by the Congress of the United States of America? The Bill is not unique. Many of us feel that it is tardy and should have been introduced before.
Mr. Heath : It is unique for this Parliament. If the Australian and Canadian Parliaments and the United States Congress have changed their law, that is a matter for them. It gives me no reason to follow them and no satisfaction at being asked to do so : let us be plain about that.
My right hon. Friend the Home Secretary said that this was a purely independent decision and that we were not being lobbied. We all know how this began--with one of the biggest lobbies in history, in California. It was highly financed in order to bring, not justice, but revenge and retribution. That is how it all started, and that is why the Bill has been introduced to the House.
Ms. Short : I intervene briefly, for the sake of the record. When Sweden considered the issue, it decided not to bring in such legislation. The United States decided to proceed by depriving people of citizenship, then offering them for extradition. Therefore, the argument put to the right hon. Member for Old Bexley and Sidcup (Mr. Heath) was inaccurate because different countries have proceeded in different ways and have not all passed the same legislation.
Mr. Heath : I am grateful to the hon. Lady, whose knowledge of Congressional proceedings is much greater than mine.
The retroactive part of the Bill is decisive and should never have been reintroduced into the House. I hope that
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the House of Lords will kill the Bill. By that time, my right hon. Friend the Prime Minister will have decided to go to the country, and that will be the end of the matter.4.54 pm
Mr. John Morris (Aberavon) : I shall come later to some of the arguments of the right hon. Member for Old Bexley and Sidcup (Mr. Heath).
I am glad that the House has a further opportunity to consider its stance on this important legislation. Fortunately, as we have been told, there will be a free vote, and I venture my own opinion on the subject. First, I wish to spell out loud and clear that I yield to no one in my commitment, some of it emotional, to wish to remedy injustice and bring to book those persons who can be proved to have committed horrendous crimes. That is a moral duty.
I listened to the arguments when the original White Paper was presented and debated. I was concerned that, if evidence against a British-born person were found, he would be liable to prosecution, whereas a person who acquired British naturalisation or, as the Bill, states, was in the alternative a resident, after the commission of the relative facts, would not be. I believe that if the facts were proved, both categories of people should be dealt with in the same way. Naturalisation should not put a person, who later takes on himself the protection of the British Crown, in a more favourable position than a British-born subject.
I understand and sympathise with the objections of the right hon. Member for Old Bexley and Sidcup to retrospective legislation, and there is an element of retrospection in the Bill. However, the crime of murder on whatever scale is not, in itself, retrospective. If the Bill is passed, we extend the jurisdiction--that is the retrospective element that all of us must face. I am prepared, and was prepared, to accept that on the basis that a British-born subject should not be in a worse position than someone who had come here at a later date. That was my approach and I voted for the principle of the White Paper when it was debated in the House.
By the time the first Bill was presented and debated I was not convinced about its implementation. That is why I welcome this third opportunity for the House to make a decision. It would be regrettable if, for some reason, the House decided that, regardless, it had to challenge a decision of the other place. I say that as one who believes fundamentally that the will of the Commons must prevail. But the opportunity means that it would be right and proper for us to consider afresh the practicalities of the Bill's implementation, if it becomes an Act, before any further vote. Today, I wish to dwell on the practicalities, which have caused me increasing concern. The Hetherington-Chalmers report noted a number of prosecution difficulties, which its authors stated should not be underestimated. The report observed that there was a likelihood that many witnesses from eastern Europe would be unable to travel to the United Kingdom to give evidence by reason of their age and/or health. Some witnesses said that they would not be willing to travel, others that they were unfit to do so. The report's authors envisaged that there would be new developments, such as video links, satellites and various new devices to overcome those difficulties. That is why, like my right hon. Friend the
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Member for Birmingham, Sparkbrook (Mr. Hattersley), I want an assurance that normal rules of evidence as regards presentation of evidence will prevail if the Bill is enacted.Anyone with an ounce of experience of our criminal courts knows the difficulties in successfully persuading a jury of a prosecution, even when the evidence on paper might appear strong, and the warnings about identification that judges are enjoined to give, time after time. Judges also have to warn juries that honestly held views may well be mistaken. That is part and parcel of ordinary trials, where memories have to go back only for a few months, or perhaps a year or so. How much greater will be the need of warnings in the time scale of war crimes trials?
However, a more significant difficulty would face any prosecutor of alleged war criminals : the allegation of "abuse of the process" referred to my right hon. Friend the Member for Sparkbrook. That is an important concept in common law, where the court has an inherent power to prevent its process from being abused. The thrust of an application that an indictment might be quashed or proceedings stayed on the ground that they are an abuse of the court's process does not necessarily involve allegations of bad faith or manipulation by the prosecuting authorities. It is founded on the fact that the delay in bringing the defendant to trial and the consequences that flowed from that delay may make it impossible to ensure that the defendant receives a fair trial. The courts have the power to consider that issue and, if they so find, have the inherent power to quash the indictment.
The legal principles were reviewed by His Honour Judge Denison at the Central Criminal Court in the case of the Queen v. Grob and Hart. He stated that certain propositions were beyond dispute. They were, and are, first, that the court had an inherent power to ensure that its proceedings were not abused ; secondly, that the power to quash an indictment to stay the proceedings on the ground of abuse of a process should be exercised only in exceptional circumstances ; thirdly, that the power should not be exercised merely because the judge thought that the prosecution should not have been brought or because he felt that, in some imprecise way, it was unfair to the defendant. The judge must balance the public interest that allegations of crime should be tried and determined with the defendant's interest that the trial must be fair. The fourth proposition is that undue delay in bringing a case to trial might amount to an abuse of process. I should add a fifth proposition, which is that the fact that Parlaiment had only recently considered legislation might be a matter to which the courts would attach considerable significance.
Mr. Dalyell rose--
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